Proving Environmental Discretion

Probing Environmental Discretion: An Argument for Regulating Greenhouse Gases from Motor Vehicles under the Clean Air Acti Omari Jackson* I. INTRODUCTION ...................................... 126 II. HISTORY OF CLIMATE CHANGE ..................... 128 A. The Evolution of Climate Change Policy ...... 128 B. The Domestic Agenda for Combating Climate C hange ........................................ 130 III. CONFRONTING ARTICLE III STANDING .............. 132 A. Developing Standing Jurisprudence ............ 132 B. The Effect of Lujan ........................... 134 C. Should the Political Branches Decide? . 136 IV. EXAMINING THE CLEAN AIR ACT ................... 138 A. The Chevron Test .............................. 138 B. An Analysis of the D.C. Circuit's Opinions in Massachusetts v. EPA .......................... 140 1. Judge Randolph's Majority Opinion ....... 140 2. Judge Sentelle's Concurrence and Dissent. 140 3. Judge Tatel's Dissent ...................... 141 V. PROMOTING REGULATION THROUGH THE CLEAN AIR ACT ...............................................143 A. Article III Standing ............................ 143 1. The Akins/Lujan Standard ................. 143 2. Proposing New Standing Requirements for Global Warming Disputes ................. 144 1. This comment was written prior to the U.S. Supreme Court's decision in Massachusetts v. EPA and reflect the author's views of the case at the time the Court granted certiorari to review the case. * J.D. 2007, Thurgood Marshall School of Law, Texas Southern University, B.A. 2003, Morehouse College. Law Clerk to the Honorable Phil Johnson, Supreme Court of Texas, 2007-2008 term. The author would like to thank his parents for their love and support during the preparation of this comment and the entire staff of the UCLA Journal of Environmental Law & Policy for their hard work. 126 JOURNAL OF ENVIRONMENTAL LAW [Vol. 25:125 B. Interpreting the Clean Air Act Provisions ..... 147 1. Examining Congressional Intent ........... 147 2. The D.C. Circuit's Mischaracterization of the Clean Air Act ......................... 149 C. The Likely Outcome of Massachusetts v. EPA. 150 V I. CONCLUSION ......................................... 151 I. INTRODUCTION On October 20, 1999, the International Center for Technology Assessment (ICTA) and a number of environmental groups peti- tioned the Environmental Protection Agency (EPA) to regulate certain greenhouse gas (GHG) emissions from new motor vehicles and engines. 2 The organizations argued that section 202(a)(1) of the Clean Air Act (CAA) 3 provided the EPA Ad- ministrator with mandatory discretion to regulate GHG emissions.4 Petitioners contended that statements made on the EPA's website and other documents concluded that the emissions they sought to control may reasonably be anticipated to endanger the public welfare. 5 They also claimed that motor vehicle emissions from the GHGs could be significantly reduced by increasing the fuel economy of vehicles, eliminating tailpipe emissions alto- gether, or using other current and developing technologies. However, the EPA concluded that it did not possess the legal authority to regulate the GHG emissions and denied their 6 petition. In Massachusetts v. Environmental Protection Agency, 7 the D.C. Circuit addressed the issue of whether the Clean Air Act authorized the EPA Administrator to control GHG emissions of 2. Control of Emissions from New Highway Vehicles and Engines, 68 Fed. Reg. 52,922 (Environmental Protection Agency Sept. 8, 2003) [hereinafter Control of Emissions] (to be codified at 40 C.F.R. pt. 2). 3. Section 202 requires the Administrator to regulate emissions of any "air pollu- tant" from motor vehicles where, in the Administrator's judgment, such emissions contribute to air pollution which may reasonably be anticipated to endanger public health or welfare. See 42 U.S.C. § 7521(a)(1). 4. Control of Emissions, supra note 2, at 52,923. Petitioners specifically sought regulation of carbon dioxide (C0 2, methane (CH 4), nitrous oxide (N20) and hydrofluorocarbon (HFCs) emissions. Id. 5. Id. 6. Control of Emissions, supra note 2, at 52,933. The EPA also held it should not regulate GHG emissions from U.S. motor vehicles under the CAA. See id. at 52,925. 7. 415 F.3d 50 (D.C. Cir. 2005). 2006-2007] PROBING ENVIRONMENTAL DISCRETION 127 new motor vehicles and engines. A three-judge panel voted 2-1 against reviewing the EPA's decision that it lacked authority under federal law to regulate GHGs.8 The majority held that the Administrator "properly exercised his discretion under section 202(a)(1) in denying the petition for rulemaking."9 In an en banc hearing, the D.C. Circuit rejected a petition for rehearing. 10 Late last term, the Supreme Court granted certiorari to hear argu- ments to resolve this controversy.11 This comment asserts that the CAA authorizes the EPA to regulate GHG emissions from new motor vehicles. The Supreme Court's decision in Chevron USA, Inc. v. Natural Resources De- fense Council, Inc.12 held that if a statute is silent or ambiguous with respect to a specific issue, the question becomes whether the agency's action involves a permissible construction of the statute. Part II of this comment discusses the historical background of climate change policy regarding GHG emissions. Part III focuses on the various environmental law cases addressing the issue of Article III standing. Part IV analyzes the Chevron test and the three opinions by the Massachusetts v. Environmental Protection Agency judges. Part V advances the belief that section 202(a)(1) of the CAA provides mandatory authority and predicts that the Supreme Court will decide that the petitioners possess proper standing and that the EPA is mandated under section 202(a)(1) to regulate GHG emissions. This prediction is based on the Court's jurisprudence regarding Article III standing and the Chevron doctrine, respectively. Part VI concludes that failure to control the production of GHG emissions from new motor vehicles and engines limits the impact of the CAA to protect the public welfare from threats to the environment. 8. Id. 9. Id. at 58. In his majority opinion, Judge Randolph assumed arguendo that "the EPA possessed statutory authority to regulate greenhouse gases from new motor vehicles." Id. at 56. 10. Massachusetts v. Envtl. Prot. Agency, 433 F.3d 66 (D.C. Cir. 2005). 11. Massachusetts v. Envtl. Prot. Agency, 415 F.3d 50 (D.C. Cir. 2005), cert. granted, 126 S. Ct. 2960 (2006). 12. 467 U.S. 837 (1984). 128 JOURNAL OF ENVIRONMENTAL LAW [Vol. 25:125 II. HISTORY OF CLIMATE CHANGE A. The Evolution of Climate Change Policy In 1896, Swedish scientist Svante August Arrhenius calculated that carbon dioxide being emitted into the atmosphere by indus- trial smokestacks could eventually change the Earth's climate by intensifying the greenhouse effect.13 Arrhenius estimated that, at then-current rates of emission, it would take thousands of years for higher carbon dioxide emissions to have a perceptible effect.14 At the time, legal action directed at climate change was not a priority for policymakers and lawyers. However, the rapid industrialization of the twentieth century sent atmospheric levels of carbon dioxide and other GHGs soaring.' 5 Climate change research did not generate significant attention in the first half of the twentieth century. 16 This was largely due to scientists rejecting the concept of global warming as a developing concern that needed immediate attention. 17 However, during the 1970s, scientists began to notice a cooling trend in the earth's weather patterns that warned of a "drastic decline in food production - with serious political implications for just about every nation on Earth.' 8 A report by the National Academy of Sci- ences (NAS) stated that a major shift in climate change "would force economic and social adjustments on a worldwide scale be- cause the global patterns of food production and population that have evolved are implicitly dependent on the climate of the pre- sent century."1 9 Although there was disagreement regarding the 13. Kristin Choo, Feeling the Heat. The Growing Debate Over Climate Change Takes on Legal Overtones, A.B.A. J., July 2006, at 31. 14. Id. 15. Id. Methane and nitrous oxide were other GHGs affected by the movement towards industrialization. Id. 16. Survey: The Heat Is On, THE ECONOMIST, Sept. 9, 2006, at 3 [hereinafter Survey]. 17. Id. An example of this occurred in 1938 when Guy Callender, a British engi- neer, gave a speech to the Royal Meteorological Society in which he claimed to have established that the world was warming. The Society regarded Callender as an ec- centric and eventually dismissed his assertions. Id. 18. Peter Gwynne, The Cooling World, Newsweek, Apr. 28, 1975, at 64. A survey by Dr. Murray Mitchell of the National Oceanic and Atmosphere Administration (NOAA) revealed a drop of half a degree in average ground temperatures in the Northern Hemisphere between 1945 and 1968. Another study by two NOAA scientists stated that the amount of sunshine that reached the ground in the U.S. declined by 1.3 percent between 1964 and 1972. Id. 19. Id. 2006-2007] PROBING ENVIRONMENTAL DISCRETION 129 cause and extent of the cooling trend, most agreed with the belief that the trend would create a reduction in agricultural productiv- ity throughout the twentieth century. 20 During the 1980s, scientific discussions about the possibility of global climate change led to public concern both in the United States and abroad.21 By then, computer-generated

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